The three-judge panel of the 9th U.S. Circuit Court of Appeals today denied the right of Imperial County, its board of supervisors and a deputy clerk to defend Proposition 8 in federal court.
The judges also asked the California Supreme Court for advice on whether ballot proponents should be allowed to have standing to defend the same-sex marriage ban against a federal challenge.
The 9th Circuit judges are weighing an appeal of a federal judge's finding last August that Proposition 8, which bars same-sex marriage in California, violates the constitutional rights of gay people to equal protection. The appeal was filed by the ballot-measure group ProtectMarriage.com, which is represented by private attorneys.
U.S. Supreme Court opinions have doubted the authority of ballot-measure proponents to step in and defend measures in federal court that state authorities decline to defend.
One especially relevant U.S. Supreme Court opinion stemmed from a case originating in Arizona, where ballot measure proponents attempted to defend an English-only law that state officials refused to defend against a federal constitutional challenge.
The California Supreme Court has, at times, allowed ballot measure proponents to defend measures in state cases, including a case that required the justices to review Proposition 8.
Neither former Gov. Arnold Schwarzenegger nor Gov. Jerry Brown, as former attorney general, chose to defend Proposition 8 in either state or federal court. Brown, now governor, has said he believes the measure is unconstitutional.
In today's filing, which is "an order certifying a question" to state Supreme Court, the 9th Circuit judges wrote that they cannot consider the constitutionality of Proposition 8 "unless the appellants before us have standing to raise it."
The judges wrote that "in light of Arizonans for Official English v. Arizona . . . it is critical that we be advised of the rights under California law of the official proponents of an initiative measure to defend the constitutionality of that measure upon its adoption by the people when the state officers charged with the laws' enforcement, including the attorney general, refuse to provide such a defense or appeal a judgment declaring the measure unconstitutional."
Lawyers for gay couples who won their federal court challenge last August contend that to have a right to go to federal court, appellants must shoulder responsibility for carrying out a policy or otherwise show it causes them concrete, personal injury. They argued that ProtectMarriage.com did not meet that requirement.
Imperial County did not meet that threshold either, the lawyers argued.